REPUBLIC OF SOUTH AFRICA

INTELLECTUAL PROPERTY LAWSAMENDMENT BILL

(As introduced in the National Assembly (proposed section 75); explanatory summary ofBill published in Government Gazette No. 33055 of 29 March 2010)

(The English text is the offıcial text of the Bill)

(MINISTER OF TRADE AND INDUSTRY)

[B 8—2010] ISBN 978-1-77037-638-0

No. of copies printed .................................... 1 800

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions fromexisting enactments.

Words underlined with a solid line indicate insertions inexisting enactments.

BILLTo amend the—

● Performers’ Protection Act, 1967, so as to amend certain definitions and insertnew definitions; to provide for the recognition and protection of traditionalperformances having an indigenous origin and a traditional character; toprovide for the payment of royalties in respect of such performances; and toprovide for recording traditional performances;

● Copyright Act, 1978, so as to amend certain definitions and insert newdefinitions; to provide for the recognition and protection of copyright works ofa traditional character; to provide for the establishment of a National Councilin respect of traditional intellectual property; to provide for a nationaldatabase for recording traditional intellectual property; and to provide for theestablishment of a national trust and a trust fund in respect of traditionalintellectual property;

● Trade Marks Act, 1993, so as to amend certain definitions and insert newdefinitions; to provide for further protection of geographical indications; toprovide for the recognition of terms and expressions of indigenous origin andfor the registration of such terms and expressions as trade marks; and toprovide for recording traditional terms and expressions;

● Designs Act, 1993, so as to amend certain definitions and insert newdefinitions; to provide for the recognition and registration of traditionaldesigns of indigenous origin; to create for this purpose a further part of thedesigns register; and to provide for recording traditional designs;

and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—

Amendment of section 1 of Act 11 of 1967, as amended by section 19 of Act 38 of1997 and section 1 of Act 8 of 2002

1. Section 1 of the Performers’ Protection Act, 1967 (Act No. 11 of 1967), is herebyamended—

(a) by the insertion in subsection (1) after the definition of ‘‘collecting society’’of the following definitions:

‘‘ ‘Council’ means the National Council for Traditional IntellectualProperty as defined in section 1 of the Copyright Act, 1978 (Act No. 98of 1978);

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‘database’ means the national database for traditional intellectualproperty as defined in section 1 of the Copyright Act, 1978 (Act No. 98of 1978);‘film’ means any fixation of images, or of images and sounds, of aperformance with or without other images or sounds;’’;

(b) by the substitution in subsection (1) for the definition of ‘‘fixation’’ of thefollowing definition:

‘‘ ‘fixation’ includes storage of—(a) sounds or images or both sounds and images; or(b) data or signals representing sounds or images or both sounds and

images,in any manner or on any medium so as to be capable of being reproducedor performed;’’;

(c) by the insertion in subsection (1) after the definition of ‘‘fixation’’ of thefollowing definitions:

‘‘ ‘fund’ means the National Trust Fund for Traditional IntellectualProperty as defined in section 1 of the Copyright Act, 1978 (Act No. 98of 1978);‘indigenous community’ means the indigenous community as definedin section 1 of the Copyright Act, 1978 (Act No. 98 of 1978);’’;

(d) by the substitution in subsection (1) for the definition of ‘‘literary andartistic works’’ of the following definition:

‘‘ ‘literary and artistic works’ [includes musical, dramatic and] havethe meaning assigned to them in the Copyright Act, 1978 (Act No. 98 of1978), insofar as such works are capable of being performed, and includemusical, traditional and dramatico-musical works and expressions offolklore;’’;

(e) by the insertion in subsection (1) after the definition of ‘‘literary and artisticworks’’ of the following definition:

‘‘ ‘performance’ means any mode of visual or acoustic presentation ofa literary, musical, artistic or traditional work, including acting, singing,delivering, declaiming, playing or otherwise performing such work, andincludes any such presentation by the operation of a loudspeaker, butexcludes such performance by the use of a phonogram, a radio ortelevision broadcast, or by the exhibition of a film, and ‘perform’ has acorresponding meaning;’’;

(f) by the substitution in subsection (1) for the definition of ‘‘performer’’ of thefollowing definition:

‘‘ ‘performer’ means an actor, singer, musician, dancer or other personwho acts, sings, delivers, declaims, plays in or otherwise performs,literary, musical, [or] artistic or traditional works;’’; and

(g) by the addition in subsection (1) of the following definition:‘‘ ‘traditional performance’ means a performance which is recognisedby an indigenous community as a performance having an indigenousorigin and a traditional character;’’.

Amendment of section 6 of Act 11 of 1967

2. Section 6 of the Performers’ Protection Act, 1967 (Act No. 11 of 1967), is herebyamended by the addition of the following subsection:

‘‘(3) (a) Where the performance contemplated in subsection (2) is a traditionalperformance recorded in the database contemplated in section 13B and acommercial benefit is derived from such performance, a royalty shall be paid to thefund by the person or persons receiving the commercial benefit.

(b) The amount of the royalty contemplated in paragraph (a) shall be determinedby agreement between the performer or the person receiving the commercialbenefit and the fund.

(c) In the absence of an agreement, the amount of the royalty shall be determinedby—

(i) one or more collecting societies representing either or both of theseparties;

(ii) the Copyright Tribunal contemplated in subsection (2); or(iii) arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965).

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(4) Any payment made in respect of traditional performances shall be paid intothe fund and used for the benefit of indigenous communities in the prescribedmanner.’’.

Substitution of section 7 of Act 11 of 1967

3. The following section is hereby substituted for section 7 of the Performers’Protection Act, 1967 (Act No.11 of 1967):

‘‘Term of protection

7. The prohibition against the use of a performance as provided for insection 5, shall commence [upon the day when]—(a) on the date the performance first took place [,] ; or(b) if incorporated in a phonogram or film, when it was first fixed on such

phonogram or film,and shall continue for a period of 50 years calculated from the end of thecalendar year in which the performance took place or was incorporated ina phonogram or film, as the case may be.’’.

Insertion of sections 13A and 13B in Act 11 of 1967

4. The following sections are hereby inserted in the Performers’ Protection Act, 1967(Act No. 11 of 1967), after section 13:

‘‘Traditional performances

13A. (1) The Council shall function as the council for traditionalperformances under this Act.

(2) When a traditional performance is performed by several performersas a group, as contemplated in section 6, the Council shall function as acollecting society, in the absence of another specifically designatedauthority.

National database

13B. (1) The database shall function as the database of traditionalperformances under this Act.

(2) Any indigenous community, or any person acting on behalf of anindigenous community, may submit to the Council a request, together withthe appropriate information, for a traditional performance to be recorded inthe database.

Reciprocity

13C. (1) The Minister may, subject to the Constitution, enter into anagreement with another state whereby arrangements are made with thatstate for reciprocity in matters regarding traditional performances for thecommercial benefit of indigenous communities.

(2) For the purposes of this section ‘‘reciprocity’’ refers to mutualexchange of favours and benefits between foreign states.’’.

Amendment of section 1 of Act 98 of 1978, as amended by section 1 of Act 66 of1983, section 1 of Act 52 of 1984, section 1 of Act 13 of 1988, section 1 of Act 125 of1992, section 50 of Act 38 of 1997 and section 1 of Act 9 of 2002

5. Section 1 of the Copyright Act, 1978 (Act No. 98 of 1978), is hereby amended—(a) by the addition to the definition of ‘‘author’’ of the following paragraph after

paragraph (i):‘‘(j) a traditional work, means the work which originated and acquired

traditional character from an indigenous community;’’;

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(b) by the insertion in subsection (1) after the definition of ‘‘copyright’’ of thefollowing definition:

‘‘ ‘Council’ means the National Council for Traditional IntellectualProperty contemplated in section 40A;’’;

(c) by the insertion in subsection (1) after the definition of ‘‘country’’ of thefollowing definition:

‘‘ ‘database’ means the national database for traditional intellectualproperty contemplated in section 40C;’’;

(d) by the insertion in subsection (1) after the definition of ‘‘exclusive licence’’ ofthe following definitions:

‘‘ ‘fund’ means the National Trust Fund for Traditional IntellectualProperty established in terms of section 40D;‘indigenous community’ means any community of people livingwithin the borders of the Republic, or which historically lived in thegeographic area located within the borders of the Republic;’’;

(e) by the substitution in subsection (1) for paragraph (a) of the definition of‘‘infringing copy’’ of the following paragraph:

‘‘(a) a literary, musical or artistic work or a published edition or atraditional work, means a copy thereof;’’;

(f) by the substitution in subsection (1) for paragraphs (a) and (b) of the definitionof ‘‘reproduction’’ of the following paragraphs, respectively:

‘‘(a) a literary or musical work or a broadcast or a traditional work,includes a reproduction in the form of a record or a cinematographfilm;

(b) an artistic work or a traditional work, includes a version producedby converting the work into a three-dimensional form or, if it is inthree dimensions, by converting it into a two-dimensional form;’’;and

(g) by the addition in subsection (1) after the definition of ‘‘this Act’’ of thefollowing definitions:

‘‘ ‘traditional intellectual property’ means an intellectual property thathas an indigenous origin and is owned or could be owned by anindigenous community as determined by the Registrar;‘traditional work’ means a literary work, an artistic work or a musicalwork which is recognised by an indigenous community as a work havingan indigenous origin and a traditional character;’’.

Amendment of section 2 of Act 98 of 1978, as amended by section 2 of Act 56 of1980, section 2 of Act 52 of 1984, section 2 of Act 125 of 1992 and section 51 of Act38 of 1997

6. Section 2 of the Copyright Act, 1978 (Act No. 98 of 1978), is hereby amended—(a) by the addition in subsection (1) of the following paragraph after paragraph

(i):‘‘(j) traditional works.’’;

(b) by the substitution for subsection (2) of the following subsection:‘‘(2) A work, except a broadcast, programme-carrying signal or a

traditional work, shall not be eligible for copyright unless the work hasbeen written down, recorded, represented in digital data or signals orotherwise reduced to a material form.’’; and

(c) by the insertion after subsection (2A) of the following subsection:‘‘(2B) A traditional work shall not be eligible for copyright unless it

has been written down, recorded, represented in digital data or signals, orotherwise reduced to a material form or communicated to the public.’’.

Amendment of section 3 of Act 98 of 1978, as amended by section 3 of Act 52 of1984, section 3 of Act 125 of 1992 and section 52 of Act 38 of 1997

7. Section 3 of the Copyright Act, 1978 (Act No. 98 of 1978), is hereby amended—(a) by the insertion after subsection (1) of the following subsection:

‘‘(1A) Copyright shall be conferred on a traditional work only if—(a) the work was created—

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(i) on or after the date of commencement of the Intellectual PropertyLaws Amendment Act, 2010; or

(ii) within a period of 50 years preceding the date contemplated insubparagraph (i); and

(b) the community from which the work or a substantial part thereoforiginated is or was an indigenous community when the work wascreated.’’; and

(b) by the addition in subsection (2) of the following paragraph:‘‘(g) traditional works, 50 years from the end of the year in which—

(i) the Intellectual Property Laws Amendment Act, 2010, came intooperation; or

(ii) the work was first communicated to the public with the consent ofthe authors,

whichever term expires last.’’.

Amendment of section 9A of Act 98 of 1978

8. Section 9A of the Copyright Act, 1978 (Act No. 98 of 1978), is hereby amended bythe substitution in subsection (1) for paragraph (b) of the following paragraph:

‘‘(b) The amount of any royalty contemplated in paragraph (a) shall bedetermined by an agreement between—

(i) the user of the sound recording, the performer and the owner of thecopyright;

(ii) the user of literary works and the author of the copyright;(iii) the user of artistic works and the author of the copyright;(iv) the user of cinematographic films and the author of the copyright;(v) the user of broadcasts and the author of the copyright;

(vi) the user of programme-carrying signals and the author of presentcopyright;

(vii) the user of published editions, the author of the work, and the publisherof the work;

(viii) the user of computer programs and the owner of the computer programs;and

(ix) the user of traditional works and the owner of the traditional work,or between their representative collecting societies.’’.

Insertion of section 11C in Act 98 of 1978

9. The following section is hereby inserted in the Copyright Act, 1978 (Act No. 98 of1978) after section 11B:

‘‘Nature of copyright in traditional works

11C. (1) Copyright in a traditional work grants the exclusive right toperform or to authorise the performance of any of the following acts in theRepublic:(a) Reproducing the work in any manner or form;(b) publishing the work if it was hitherto unpublished;(c) in the case of a work of a literary or musical nature, performing the

work in public and broadcasting the work;(d) in the case of a work of a musical or artistic nature, or a literary work

in the form of a dramatic work, including the work in a cinematographfilm or a television broadcast;

(e) causing the work, or a television or other programme whichincorporates the work, to be transmitted in a diffusion service, unlesssuch service transmits a lawful broadcast including the work and isoperated by the original broadcaster;

(f) making an adaptation of the work; and(g) doing in relation to an adaptation of the work, any of the acts specified

in paragraphs (a) to (f).(2) The exclusive right granted under subsection (1) shall be exercised

subject to—

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(a) any rights in respect of the traditional work acquired by any personprior to the commencement of the Intellectual Property LawsAmendment Act, 2010; and

(b) the rights of an indigenous community or any one of its members.’’.

Insertion of section 19C in Act 98 of 1978

10. The following section is hereby inserted in the Copyright Act, 1978 (Act No. 98of 1978), after section 19B:

‘‘General exceptions regarding protection of traditional works

19C. (1) Section 12(1), (2), (3), (4), (5), (9), (11), (12) and (13) shall,with the necessary changes required by the context, apply to traditionalworks, in so far as they can be applied to the specific work.

(2) The indigenous community from which the work originated, or anyof its members, shall be entitled to perform any of the acts referred to insection 11C.

(3) If any commercial benefit is derived from any act contemplated insubsection (2), the person who derived such benefit shall pay a royalty tothe fund as the owner of the copyright.

(4) The amount of the royalty contemplated in subsection (3) shall bedetermined—(a) by agreement between the community or person as the user of the

traditional work and the fund as the owner of the copyright;(b) by one or more collecting societies representing either or both of these

parties; or(c) in the absence of an agreement, by—

(i) the Copyright Tribunal referred to in section 29(1); or(ii) arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of

1965).’’.

Amendment of section 21 of Act 98 of 1978, as amended by section 9 of Act 56 of1980

11. Section 21 of the Copyright Act, 1978 (Act No. 98 of 1978), is hereby amendedby the addition in subsection (1) of the following paragraph:

‘‘(f) If the work is a traditional work, the ownership of any copyright conferredby section 3, shall vest in the fund.’’.

Amendment of section 22 of Act 98 of 1978

12. Section 22 of the Copyright Act, 1978 (Act No. 98 of 1978), is hereby amendedby the insertion after subsection (2) of the following subsection:

‘‘(2A) The copyright in a traditional work shall not be transmissible byassignment, testamentary disposition or operation of law, but the commission of anact which is the subject of the copyright may be licensed.’’.

Amendment of section 23 of Act 98 of 1978, as amended by section 20 of Act 125 of1992

13. Section 23 of the Copyright Act, 1978 (Act No. 98 of 1978), is hereby amendedby the addition of the following subsection:

‘‘(5) (a) The copyright in a traditional work shall not be infringed by theperformance of any act referred to in section 11C by the indigenous communityfrom which a traditional work originated, or by any one of its members, in thecircumstances contemplated in section 19C(2) and (3).

(b) The copyright in a traditional work shall not be infringed by a person if thatperson has acquired rights in respect of that work by performing any act referred toin section 11C prior to the commencement of the Intellectual Property LawsAmendment Act, 2010, and continues to perform such act:

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Provided that, if any commercial benefit is derived from any such act, a royaltyshall be paid by that person to the fund as the owner of the copyright in respect ofsuch continued act or acts.

(c) The amount of the royalty contemplated in paragraph (b) shall bedetermined—(i) by agreement between the person as the user of the traditional work and the

fund as the owner of the copyright;(ii) by one or more collecting societies representing either or both of these parties;

or(iii) in the absence of an agreement, by—

(aa) the Copyright Tribunal referred to in section 29(1); or(bb) arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965).’’.

Amendment of section 39 of Act 98 of 1978, as amended by section 4 of Act 9 of 2002

14. Section 39 of the Copyright Act, 1978 (Act No. 98 of 1978), is hereby amendedby the substitution for paragraph (c) of the following paragraph:

‘‘(c) in consultation with the Minister of Finance, prescribing the remuneration andallowances of members of the advisory committee referred to in section 40,the Council, and of [its] their subcommittees, and the conditions upon whichsuch members shall be appointed; and’’.

Amendment of section 40 of Act 98 of 1978, as amended by section 4 of Act 61 of1989

15. Section 40 of the Copyright Act, 1978 (Act No. 98 of 1978), is hereby amendedby the substitution for subsection (6) of the following subsection:

‘‘(6) The registrar shall be responsible for the administration of the advisorycommittee, the Council and [the] their subcommittees.’’.

Insertion of sections 40A, 40B, 40C and 40D in Act 98 of 1978

16. The following sections are hereby inserted in the Copyright Act, 1978 (Act No. 98of 1978), after section 40:

‘‘National Council for Traditional Intellectual Property

40A. (1) The Minister shall establish a National Council for TraditionalIntellectual Property.

(2) The Council shall consist of not more than 12 members, appointed bythe Minister.

(3) The Minister shall designate one of the members of the Council as theChairperson of the Council.

(4) In appointing the members of the Council, the Minister mayconsult—(a) the Ministers responsible for—

(i) agriculture;(ii) arts and culture;

(iii) environmental affairs; and(iv) science and technology;

(b) organised local government;(c) an association of traditional healers; and(d) any other relevant body or institution.

(5) The Council shall—(a) be broadly representative of the different cultures within the Republic;

and(b) at all times have as members—

(i) at least two persons with extensive knowledge in andpatronage of traditional cultures and values of indigenouscommunities;

(ii) at least two persons with extensive knowledge in andpatronage of traditional artistic, literary, musical and perform-ing arts; and

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(iii) at least two persons with extensive knowledge of the law.(6) The members of the Council are appointed on such terms and

conditions, including remuneration, as may be determined by the Ministerin consultation with the Minister of Finance.

(7) A member of the Council shall hold office for a period of three yearsand may be reappointed, upon the expiry of that period, for a further periodof three years.

(8) For the sake of continuity, at least five members of the Council shallat all times be reappointed members of the Council.

(9) The Minister may, subject to the Promotion of Administrative JusticeAct, 2000 (Act No. 3 of 2000), remove a member of the Council for—(a) non-performance;(b) serious misconduct; or(c) conduct that undermines the integrity or objective of the Council.

(10) Subject to the Promotion of Administrative Justice Act, 2000 (ActNo. 3 of 2000), the Minister may dissolve the Council—(a) if the Council fails to perform its functions in an effective and efficient

manner; and(b) on the grounds of mismanagement.

(11) (a) When the Minister dissolves the Council in terms of subsection(10), the Minister may appoint an interim body for the continuedgovernance and control of the affairs of the Council, on such conditions asthe Minister may determine.

(b) Such a body must be appointed for a period not exceeding six monthsor until the new Council is appointed in terms of subsection (2), whicheveris the lesser.

Functions of Council

40B. (1) The Council shall—(a) advise the Minister on any matter concerning indigenous knowledge

relating to copyright;(b) advise the registrars of patents, copyright, trade marks, traditional

terms and expressions, and designs on any matter regarding theregistration of intellectual property relating to indigenous knowledge;

(c) advise the Minister on matters relating to traditional performances;(d) advise on the integrity of a database of intellectual property in relation

to indigenous knowledge relating to copyright;(e) perform such further functions as provided for in the—

(i) Patents Act, 1978 (Act No. 57 of 1978);(ii) Trade Marks Act, 1993 (Act No. 194 of 1993);

(iii) Designs Act, 1993 (Act No. 195 of 1993); and(iv) Performers’ Protection Act, 1967 (Act No. 11 of 1967); and

(f) carry out such tasks as assigned to it from time to time by the Minister.(2) The Council may—

(a) appoint any person to assist the Council with the performance of anyspecific act, task or assignment, or to investigate any matter relating toits functions;

(b) constitute and maintain such committees as it may deem necessary;(c) appoint as members of the committees any of its members and any

other persons for such periods of time as the council may determine;and

(d) refer to such committees any tasks or matters as may be necessary toenable the Council to carry out its functions.

(3) The Minister may, in consultation with the Minister of Finance,prescribe the tariff of fees payable for—(a) any work performed or services rendered by any person at the specific

request or instruction of the Council;(b) access by any person to the results of, or other information in

connection with, any research performed or information collected bythe Council; or

(c) access by any person to the database contemplated in section 40C.

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(4) The Council may recommend to the Minister appropriate measures toensure the effective implementation of the Act in relation to all matterspertaining to indigenous knowledge relating to copyright.

National database

40C. (1) There shall be kept at the offices of the registrars of patents,copyright, trade marks and designs, a database for traditional intellectualproperty in the prescribed manner.

(2) All information regarding—(a) traditional innovations;(b) traditional copyright works;(c) traditional terms and expressions;(d) traditional designs; and(e) traditional performances,shall be recorded in the database in the prescribed manner.

(3) The database may be kept in an electronic format, and shall be openfor inspection by the public during office hours, upon payment of aprescribed fee.

(4) The registrars of patents, copyright, trade marks and designs mayrequest any person, institution, body or agency to provide them with suchinformation as they may require in order to maintain the database.

(5) Any—(a) indigenous community;(b) person acting on behalf of an indigenous community; or(c) other person, institution, body or agency,may submit to the registrar a request together with the appropriateinformation for a traditional copyright work to be recorded in the database.

National Trust Fund for Traditional Intellectual Property

40D. (1) There is hereby established a fund to be known as the NationalTrust Fund for Traditional Intellectual Property.

(2) The fund shall consist of separate subfunds which shall vest in and beadministered by the registrars of patents, copyright, trade marks anddesigns, respectively.

(3) The registrars of patents, copyright, trade marks and designs shall beresponsible for the promotion and preservation of the traditional intellec-tual property, including the commercialisation and exploitation of suchtraditional intellectual property for the purpose of generating income.

(4) Income derived from the use of such traditional intellectual property,including all royalties payable to the fund as provided for in—(a) this Act; and(b) the legislation referred to in section 40B(1)(e),shall be paid into the fund, to be used for the benefit of indigenouscommunities in the prescribed manner.

(5) All monies paid into the fund shall be allocated to the respectivesubfunds to be held in trust for the purposes contemplated in subsection (3).

(6) The registrars of patents, copyright, trade marks and designs shallsubmit an annual report to the Minister in respect of the administration ofthe fund.

(7) Notwithstanding the provisions of this section, any indigenouscommunity may establish a legal entity, business or any other enterprise topromote or exploit traditional intellectual property.

Reciprocity

40E. (1) The Minister may, subject to the Constitution, enter into anagreement with another state whereby arrangements are made with thatstate for reciprocity in matters regarding traditional work and traditionalintellectual property for the commercial benefit of indigenous communi-ties.

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(2) For the purposes of this section ‘‘reciprocity’’ refers to mutualexchange of favours and benefits between foreign states.’’.

Amendment of section 1 of Act 194 of 1993, as amended by section 65 of Act 38 of1997

17. Section 1 of the Trade Marks Act, 1993 (Act No. 194 of 1993), is hereby amendedby the insertion after the heading ‘‘Part XII Certification Trade Marks and CollectiveTrade Marks section 42 and 43)’’ of the following heading:

‘‘Part XIIACouncil, database and fund for traditional terms and expressions

(sections 43A to 43C)’’.

Amendment of section 2 of Act 194 of 1993

18. Section 2 of the Trade Marks Act, 1993 (Act No. 194 of 1993), is herebyamended—

(a) by the insertion in subsection (1) after the definition of ‘‘certification trademark’’ of the following definition:

‘‘ ‘collecting society’ means a collecting society established under theCopyright Act, 1978 (Act No. 98 of 1978);

(b) by the insertion in subsection (1) after the definition of ‘‘conventioncountry’’ of the following definition:

‘‘ ‘Council’ means the National Council for Traditional IntellectualProperty as defined in section 1 of the Copyright Act, 1978 (Act No. 98of 1978);

(c) by the insertion in subsection (1) after the definition of ‘‘court’’ of thefollowing definition:

‘‘ ‘database’ means the national database for traditional intellectualproperty as defined in section 1 of the Copyright Act, 1978 (Act No. 98of 1978);’’;

(d) by the insertion in subsection (1) after the definition of ‘‘device’’ of thefollowing definitions:

‘‘ ‘fund’ means the National Trust Fund for Traditional IntellectualProperty as defined in section 1 of the Copyright Act, 1978 (Act No. 98of 1978) ;‘geographical indication’ means an indication which identifies goods asoriginating in the territory of the Republic or in a region or locality in thatterritory, and where a particular quality, reputation or other characteristicof the goods is essentially attributable to the geographical origin of thegoods, including natural and human factors;‘indigenous community’ means the indigenous community as definedin section 1 of the Copyright Act, 1978 (Act No. 98 of 1978);’’;

(e) by the insertion in subsection (1) after the definition of ‘‘trade mark’’ of thefollowing definition:

‘‘ ‘traditional term or expression’ means a term or expression which isrecognised by an indigenous community as a term or expression havingan indigenous origin and a traditional character and which is used todesignate, describe or refer to goods or services;’’;

(f) by the addition of the following subsections:‘‘(5) Subject to subsection (6) and section 9(3) and subject to any

rights in respect of a traditional term or expression acquired by anyperson prior to the commencement of the Intellectual Property LawsAmendment Act, 2010, a traditional term or expression may notconstitute a trade mark.

(6) A traditional term or expression may constitute—(a) a certification trade mark or a collective trade mark; and(b) a geographical indication.’’.

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Amendment of section 9 of Act 194 of 1993

19. Section 9 of the Trade Marks Act, 1993 (Act No. 194 of 1993), is hereby amendedby the addition of the following subsection:

‘‘(3) (a) In order to be registrable as a certification trade mark or collective trademark, a traditional term or expression shall be capable of distinguishing the goodsor services of an indigenous community in respect of which it is registered orproposed to be registered, from the goods or services of another community orperson, either generally or where the traditional term or expression is registered orproposed to be registered subject to limitations, in relation to use within thoselimitations.

(b) The applicant for registration and the registered proprietor shall be theindigenous community or a person or body authorised to act on its behalf.’’.

Amendment of section 10 of Act 194 of 1993, as amended by section 59 of Act 38 of1997

20. Section 10 of the Trade Marks Act, 1993 (Act No. 194 of 1993), is herebyamended—

(a) by the substitution in subsection (2) for paragraph (b) of the followingparagraph:‘‘(b) subject to sections 42 and 43, consists exclusively of a sign or an

indication which may serve, in trade, to designate the kind, quality,quantity, intended purpose, value, geographic origin or other character-istics of the goods or services, or mode or time of production of the goodsor of rendering of the services; or’’; and

(b) by the addition in subsection (2) of the following paragraph after paragraph(c):‘‘(d) subject to section 9(3), consists exclusively of a traditional term or

expression and which in the bona fide and established practices of thetrade has become indicative of or is generally associated with the goodsor services in respect of which the mark is sought to be registered.’’.

Amendment of section 16 of Act 194 of 1993

21. Section 16 of the Trade Marks Act, 1993 (Act No. 194 of 1993), is herebyamended—

(a) by the insertion of the following subsection after subsection (2):‘‘(2A) (a) If it appears to the registrar that the mark sought to be

registered—(i) consists exclusively of, or an essential part thereof constitutes,

a traditional term or expression as contemplated in section10(2)(d); and

(ii) is not registrable in terms of section 9(3), 42 or 43, he or sheshall provisionally refuse the application and refer the appli-cation to the Council for its advice.

(b) The Council shall consider such application and advise theregistrar within three months of receipt of the referral whether or not, inits opinion, the mark can be registered.

(c) Upon receipt of the advice of the Council, the registrar shall acceptor refuse the application.’’;

(b) by the substitution for subsection (3) of the following subsection:‘‘(3) The registrar shall advise an applicant for registration in writing

within a reasonable period from the date of the application, of his or herdecision in terms of subsection (2) or (2A).’’;

(c) by the substitution for subsection (4) of the following subsection:‘‘(4) In the case of—

(a) an acceptance in terms of section (2)(b); [or](b) a refusal in terms of subsection (2)(d); or(c) a provisional refusal or refusal in terms of subsection (2A),the registrar shall, on application by the applicant in the prescribedmanner, state in writing the grounds for his or her decision.’’; and

(d) by the insertion after subsection (4) of the following subsection:

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‘‘(4A) (a) In the case of an acceptance of a traditional term orexpression for registration as a certification trade mark or collective trademark, the registrar shall notify the Council in the prescribed manner.

(b) In the case of an acceptance of a geographical indication as—(i) a certification trade mark in terms of section 42; or

(ii) a collective trade mark in terms of section 43,the registrar shall notify the Director-General of the departmentresponsible for agriculture in the prescribed manner.’’.

Amendment of section 34 of Act 194 of 1993, as amended by section 64 of Act 38 of1997

22. Section 34 of the Trade Marks Act, 1993 (Act No. 194 of 1993), is herebyamended by the insertion after subsection (2) of the following subsections:

‘‘(2A) Notwithstanding the provisions of subsection (1), the registeredproprietor of a trade mark registered in terms of section 9(3) in respect of atraditional term or expression shall not be entitled to interfere with or restrain aperson who—(a) commenced using a mark in the course of trade in the manner contemplated in

subsection (1) at a date prior to the commencement of the Intellectual PropertyLaws Amendment Act, 2010, and has continued to make bona fide use of suchmark: Provided that if any commercial benefit is derived from any such useafter the date of registration of the trade mark in terms of section 9(3), alicence fee shall be paid by such person to the trust as provided for insubsection (2B);

(b) is a member of the indigenous community in whose name the trade mark wasregistered and uses a mark in the course of trade in the manner contemplatedin subsection (1): Provided that if any commercial benefit is derived from anysuch use after the date of registration of the trade mark, a licence fee shall bepaid by such person to the fund as provided for in subsection (2B).

(2B) The amount of the licence fee contemplated in subsection (2A) shall bedetermined—(a) by agreement between the person who is the user of the mark and the fund; or(b) by one or more collecting societies representing either or both of these parties;

or(c) in the absence of an agreement, by—

(i) the court; or(ii) arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965).

(2C) All monies payable in respect of the use of traditional terms and expressionsregistered under this Act shall be paid into the fund and shall be used for the benefitof indigenous communities, in the prescribed manner.’’.

Amendment of section 42 of Act 194 of 1993

23. Section 42 of the Trade Marks Act, 1993 (Act No. 194 of 1993), is herebyamended by the insertion after subsection (1) of the following subsection:

‘‘(1A) Geographical indications or other indications of geographical origin maybe registered as certification marks.’’.

Amendment of section 43 of Act 194 of 1993

24. Section 43 of the Trade Marks Act, 1993 (Act No. 194 of 1993), is herebyamended by the substitution for subsection (2) of the following subsection:

‘‘(2) Geographical [names] indications or other indications of geographicalorigin may be registered as collective trade marks.’’.

Insertion of Part XIIA in Act 194 of 1993

25. The following Part is hereby inserted in the Trade Marks Act, 1993 (Act No. 194of 1993), after Part XII:

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‘‘Part XIIA

Council, database and fund for traditional terms and expressions

Traditional terms and expressions

43A. The Council must advise on the registration of traditional terms andexpressions under this Act.

National database

43B. (1) The database shall function as the database of traditional termsand expressions under this Act.

(2) Traditional terms and expressions—(a) contained in applications referred to the Council in terms of section

16(2A); and(b) accepted in terms of section 16(4A),shall be recorded in the database.

(3) Any—(a) indigenous community; or(b) person or body authorised to act on behalf of an indigenous

community,may submit to the Council a request together with the appropriateinformation for a traditional term or expression to be recorded in thedatabase.

(4) Section 22(4) shall apply, with the necessary changes, in relation tothe database for traditional terms and expressions.’’.

Amendment of section 69 of Act 194 of 1993

26. Section 69 of the Trade Marks Act, 1993 (Act No. 194 of 1993), is herebyamended by the insertion after subsection (1) of the following subsection:

‘‘(1A) The Minister may, in consultation with the Minister of Finance, makeregulations providing for the establishment, composition, funding and functions ofcollecting societies contemplated in section 34(2B), and any other matter that itmay be necessary or expedient to regulate for the proper functioning of suchsocieties.’’.

Insertion of section 69A in Act 194 of 1993

27. The following section is hereby inserted in the Trade Marks Act, 1993 (Act No.194 of 1993), after section 69:

‘‘Reciprocity

69A. The Minister may, subject to the Constitution, enter into anagreement with another state whereby arrangements are made with thatstate for reciprocity in matters regarding traditional terms and expressionsfor the commercial benefit of indigenous communities.

(2) For the purposes of this section ‘‘reciprocity’’ refers to mutualexchange of favours and benefits between foreign states.’’.

Amendment of section 1 of Act 195 of 1993, as amended by section 69 of Act 38 of1997

28. Section 1 of the Designs Act, 1993 (Act No. 195 of 1993), is hereby amended—(a) by the insertion in subsection (1) after the definition of ‘‘cessionary’’ of the

following definition:‘‘ ‘collecting society’ means a collecting society established under theCopyright Act, 1978 (Act No. 98 of 1978);’’;

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(b) by the insertion in subsection (1) after the definition of ‘‘conventioncountry’’ of the following definition:

‘‘ ‘Council’ means the National Council for Traditional IntellectualProperty as defined in section 1 of the Copyright Act, 1978 (Act No. 98of 1978);’’;

(c) by the insertion in subsection (1) after the definition of ‘‘court’’ of thefollowing definition:

‘‘ ‘database’ means the national database for traditional intellectualproperty as defined in section 1 of the Copyright Act, 1978 (Act No. 98of 1978);’’;

(d) by the substitution for the definition of ‘‘design’’ of the following definition:‘‘ ‘design’ means an aesthetic design [or], a functional design or atraditional design;’’;

(e) by the insertion in subsection (1) after the definition of ‘‘functional design’’of the following definitions:

‘‘ ‘fund’ means the National Trust Fund for Traditional IntellectualProperty as defined in section 1 of the Copyright Act, 1978 (Act No. 98of 1978);‘indigenous community’ means the indigenous community as definedin section 1 of the Copyright Act, 1978 (Act No. 98 of 1978);’’;

(f) by the addition in the definition of ‘‘proprietor’’ of the following paragraph:‘‘(e) where the design is a traditional design, the indigenous community

from which the design originated.’’; and(g) by the insertion in subsection (1) after the definition of ‘‘this Act’’ of the

following definition:‘‘ ‘traditional design’ means any design applied to any article bywhatever means, whether applied—(a) for the pattern, shape, configuration or ornamentation of the article;

or(b) for any two or more of the purposes contemplated in paragraph (a),and whether or not such design has features which are necessitated by thefunction which such article has to perform, which design is recognisedby an indigenous community as having an indigenous origin and atraditional character;’’.

Amendment of section 2 of Act 195 of 1993

29. Section 2 of the Designs Act, 1993 (Act No. 195 of 1993), is hereby amended bythe addition to subsection (1) of the following proviso:

‘‘, and provided further that a traditional design shall not be revoked unless theCouncil has been served as contemplated in section 31(2A).’’.

Amendment of section 7 of Act 195 of 1993

30. Section 7 of the Designs Act, 1993 (Act No. 195 of 1993), is hereby amended bythe substitution for subsection (5) of the following subsection:

‘‘(5) The register shall consist of a Part A with regard to aesthetic designs [and],a Part F with regard to functional designs and a Part T with regard to traditionaldesigns.’’.

Amendment of section 14 of Act 195 of 1993, as amended by section 70 of Act 38 of1997

31. Section 14 of the Designs Act, 1993 (Act No. 195 of 1993), is hereby amended—(a) by the insertion in subsection (1) of the following paragraph after paragraph

(b):‘‘(c) in the case of a traditional design—

(i) is new; and(ii) has features which are based on or derived from the designs of an

indigenous community and which have a traditional character;’’;(b) by the substitution in subsection (2) for paragraph (b) of the following

paragraph:

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‘‘(b) in the case of any other design, excluding a traditional design, within sixmonths,’’; and

(c) by the insertion after subsection (2) of the following subsection:‘‘(2A) A traditional design shall be deemed to be new if it is different

from or does not form part of the state of the art immediately before—(a) the date of application for registration thereof; or(b) the release date thereof,whichever is the earlier: Provided that in the case of the release date beinga date—(i) within a period of 10 years preceding the date of commencement of

the Intellectual Property Laws Amendment Act, 2010, the applicationfor the registration of the design is lodged within two years after thesaid commencement date; or

(ii) after the date of commencement of the Intellectual Property LawsAmendment Act, 2010, the application for the registration of thedesign is lodged within two years of such release date.’’.

Amendment of section 15 of Act 195 of 1993, as amended by section 71 of Act 38 of1997

32. Section 15 of the Designs Act, 1993 (Act No. 195 of 1993), is hereby amended—(a) by the substitution for subsection (1) of the following subsection:

‘‘(1) The registrar shall examine in the prescribed manner anyapplication for the registration of a design and, if it complies with therequirements of this Act, register the design in Part A of the register if itis an aesthetic design [or], in Part F of the register if it is a functionaldesign or in Part T of the register if it is a traditional design.’’;

(b) by the insertion after subsection (1) of the following subsections:‘‘(1A) In the case of a traditional design, the registrar shall refer the

application to the Council for advice, if the registrar is in doubt as towhether or not the application complies with the requirements of the Act.

(1B) The Council shall consider such application and give advice tothe registrar within three months of the referral whether or not, in itsopinion, the design can be registered.

(1C) Upon receipt of the advice of the Council, the registrar shalleither—(a) register the design in Part T of the register if it is found to comply

with the requirements of the Act; or(b) refuse the application,as the case may be.

(1D) In the case of the design being registered as contemplated insubsection (1C), the registrar shall notify the Council.’’; and

(c) by the addition in subsection (3) of the following proviso:‘‘: Provided that a traditional design may be registered only in Part T

of the register.’’.

Amendment of section 22 of Act 195 of 1993

33. Section 22 of the Designs Act, 1993 (Act No. 195 of 1993), is hereby amended bythe insertion after subsection (1) of the following subsection:

‘‘(1A) The duration of the registration of—(a) a traditional design registered in terms of section 14(2A)(a) shall be 10 years

from the date of commencement of the Intellectual Property Laws Amend-ment Act, 2010;

(b) a traditional design registered in terms of section 14(2A)(b) shall be 15 yearsfrom the date of registration or from the release date, whichever date is earlier,

subject to the payment of the prescribed renewal fee.’’.

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Amendment of section 31 of Act 195 of 1993

34. Section 31 of the Designs Act, 1993 (Act No. 195 of 1993), is hereby amended bythe insertion after subsection (2) of the following subsection:

‘‘(2A) In the case of a traditional design, an application for the revocation of atraditional design shall also be served on the Council in the prescribed manner.

(2B) If the Council is served with an application for the revocation of atraditional design as contemplated in section 2(1) and subsection (2A), the Councilshall notify the registrar within the prescribed period whether it intends to contestthe revocation.’’.

Amendment of section 35 of Act 195 of 1993, as amended by section 38 of 1997

35. Section 35 of the Designs Act, 1993 (Act No. 195 of 1993), is hereby amended bythe addition of the following subsections after subsection (12):

‘‘(13) Notwithstanding subsections (9) and (10), the registered proprietor of atraditional design shall not be entitled to interfere with or restrain a person—(a) who commenced making, importing, using or disposing of any articles

included in the class in which the traditional design is registered andembodying—(i) the registered traditional design; or

(ii) a design not substantially different from the registered traditional design,within the period of 10 years of the date of application for registration, providedthat if any commercial benefit is derived from any such act after the date ofregistration of the traditional design, a royalty shall be paid by such person to thetrust as provided for in subsection (14);(b) who is a member of the indigenous community from which the traditional

design originated by doing any of the acts contemplated in paragraph (a):Provided that if any commercial benefit is derived from any such acts after thedate of registration of the traditional design, a royalty shall be paid by suchperson to the trust as provided for in subsection (14).

(14) The amount of royalty contemplated in subsection (13) shall bedetermined—(a) by agreement between the person who is the user of the traditional design and

the fund;(b) by one or more collecting societies representing either or both of these parties;

or(c) in the absence of an agreement, by—

(i) a court of law; or(ii) arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965).

(15) All monies payable in respect of the use of traditional designs shall be paidinto the fund and shall be used for the benefit of indigenous communities in theprescribed manner.’’.

Insertion of sections 38A and 38B in Act 195 of 1993

36. The following sections are hereby inserted in the Designs Act, 1993 (Act No. 195of 1993), after section 38:

‘‘Traditional designs

38A. The Council shall advise on matters relating to traditional designsunder this Act.

National database

38B. (1) The database shall function as the database of traditionaldesigns under this Act.

(2) Traditional designs contained in applications referred to the Councilin terms of section 15(1A) shall be recorded in the database.

(3) Any—(a) indigenous community; or(b) person or body acting on behalf of an indigenous community,

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may submit to the Council a request together with the appropriateinformation for a traditional design to be recorded in the database.

(4) Section 8 shall apply, with the necessary changes, in relation to thedatabase for traditional designs.’’.

Insertion of section 53A in Act 195 of 1993

37. The following section is hereby inserted in the Designs Act, 1993 (Act No. 195 of1993), after section 53:

‘‘Reciprocity

53A. The Minister may, subject to the Constitution, enter into anagreement with another state whereby arrangements are made with thatstate for reciprocity in matters regarding traditional designs for thecommercial benefit of indigenous communities.

(2) For the purposes of this section ‘‘reciprocity’’ refers to mutualexchange of favours and benefits between foreign states.’’.

Amendment of section 54 of Act 195 of 1993

38. Section 54 of the Designs Act, 1993 (Act No. 195 of 1993), is hereby amended—(a) by the substitution for paragraph (a) of the following paragraph—

‘‘(a) with the concurrence of the Minister of [State Expenditure] Finance,prescribing the matters in respect of which fees shall be payable, and thetariff of such fees;’’; and

(b) by the insertion after paragraph (a) of the following paragraph:‘‘(aa) with the concurrence of the Minister of Finance, providing for the

establishment, composition, funding and functions of collectingsocieties contemplated in section 35(14), and any other matter thatmay be necessary or expedient to regulate for the proper functioning ofsuch societies;’’.

Short title and commencement

39. This Act is called the Intellectual Property Laws Amendment Act, 2010, andcomes into operation on a date fixed by the President by proclamation in the Gazette.

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MEMORANDUM ON THE OBJECTS OF THE INTELLECTUALPROPERTY LAWS AMENDMENT BILL, 2010

1. BACKGROUND

1.1 The Republic of South Africa has a number of pieces of primary legislationthat provide for the definition, protection and enforcement of intellectualproperty (IP). These are the—(a) Patents Act, 1978 (Act No. 57 of 1978);(b) Copyright Act, 1978 (Act No. 98 of 1978);(c) Trade Marks Act, 1993 (Act No. 194 of 1993);(d) Designs Act, 1993 (Act No. 195 of 1993);(e) Performers’ Protection Act, 1967 (Act No. 11 of 1967); and(f) Registration of Copyright in Cinematograph Films Act, 1977 (Act No. 62

of 1977).

1.2 There are also other statutes that are relevant to IP, such as the MerchandiseMarks Act, 1941 (Act No. 17 of 1941), and the Counterfeit Goods Act, 1997(Act No. 37 of 1997). However, these statutes do not create or recognisecategories of protectable IP, but rather apply to IP as recognised and protectedin the primary legislation.

1.3 In 2004 Cabinet approved the adoption of the policy on IndigenousKnowledge Systems (the IKS policy). Pursuant to the adoption of the IKSpolicy the Department of Trade and Industry (dti) has formulated a policydocument on the commercialisation and protection of Indigenous Knowledge(IK) through the IP system. This policy seeks to recognise and protect IK as aform of IP, and to enable and promote the commercial exploitation of IK forthe benefit of the indigenous communities from which the IK originated.

1.4 In order to create an appropriate legal framework for the recognition andprotection of IK and to provide appropriate structures and mechanisms toenable the commercialisation of IK, it was considered appropriate to create aninterface of IK with the current IP legislative dispensation and to integrate theprotection of IK into the current IP protection laws of the Republic.

1.5 The draft Intellectual Property Laws Amendment Bill, 2010 (the Bill), seeksto implement the dti policy by introducing appropriate amendments into theprimary IP statutes, excluding the Patents Act, 1978.

1.6 The Patents Amendment Act, 2005 (Act No. 20 of 2005), already givesrecognition to indigenous knowledge and use within the context of theprotection of indigenous genetic and biological resources as contemplated inthe National Environmental Management: Biodiversity Act, 2004 (Act No. 10of 2004). The Patents Amendment Act, 2005, compliments the BiodiversityAct, 2004. There may be a need to effect consequential amendments to theBiodiversity Act, 2004, and the Plant Breeders Act, 1976 (Act No. 15 of1976). This will be necessitated by the fact that the national departmentresponsible for agriculture, which administers the Plant Breeders Act, 1976,has not yet effected amendments to compliment the Patents Amendment Act,2005.

1.7 Indigenous knowledge and traditional intellectual property of indigenouscommunities may be open to exploitation by foreign countries. It is importantto ensure that this is avoided and that the indigenous communities deriveevery benefit from their indigenous knowledge.

2. OBJECTS OF BILL

2.1 The proposed amendments to the Copyright Act, 1978, the Trade Marks Act1993, the Designs Act, 1993, and the Performers’ Protection Act, 1967, intendto achieve the following objectives:

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(a) Provide legislative mechanisms to protect the different species oftraditional intellectual property and geographical indications;

(b) recognise indigenous knowledge as traditional intellectual property bydefining indigenous knowledge systems components, in relation to the—

(i) Copyright Act, 1978, as ‘‘traditional works’’;(ii) Designs Act, 1993, as ‘‘traditional designs’’;

(iii) Performers’ Protection Act, 1967, as ‘‘traditional performances’’;and

(iv) Trade Marks Act, 1993, as ‘‘traditional terms and expressions’’;(c) include a definition of ‘‘geographical indications’’ in the Trade Marks

Act, 1993, to recognise and protect Geographical Indications (GI’s) asindications of origin referring to qualities and characteristics of goodsderived from and originating in the Republic or a region within theRepublic;

(d) establish a national council to advise the Minister and the registrars ofintellectual property on traditional intellectual property; a national trustfund to facilitate the commercialisation of traditional intellectualproperty and the application of income generated to the benefit ofindigenous communities; and a national database for traditional intellec-tual property to facilitate access to information regarding traditional IP;

(e) provide for use of collecting societies in the entire copyright regime aswell as in trademarks and designs regime.

2.2 The proposed legislative amendments seek to give effect to the Government’spolicy to recognise and afford protection to indigenous knowledge as anational heritage and asset, and to ensure that indigenous communities benefitfrom such recognition and protection, and from the commercialisation of thisasset.

2.3 The proposed legislative amendments will also place the Republic amongstthe leading countries as regards the recognition and protection of indigenousvalues.

2.4 The Bill also seeks to ensure that the indigenous knowledge and traditionalintellectual property of indigenous communities is protected from exploita-tion by foreign countries. In this respect there is a proposed amendment thatempowers the Minister to enter into agreements with foreign countries basedon the principle of reciprocity.

3. BODIES AND ORGANISATIONS CONSULTED

The following bodies and organisations were consulted:● Departments of Science and Technology, Foreign Affairs, Agriculture,

Environmental Affairs, Arts and Culture and Health;● Science councils, including the Medical Research Council;● Provincial Governments, including the Limpopo Department of Environment

and Tourism;● Standing Advisory Committee on Intellectual Property Rights;● A professional reference team consisting of eminent people in the area of IP

and traditional knowledge;● Traditional Leaders in KZN and North West Provinces; and● Universities of Durban Westville, Fort Hare, North West, Cape Town and

Venda.

4. FINANCIAL IMPLICATIONS

Additional funding will be required for the establishment of a database on traditionalintellectual property and for the remuneration of members of the council, as well as theadditional staff that will be required by the Companies and Intellectual PropertyRegistration Office (CIPRO) to administer applications for traditional intellectualproperty. The additional funding requirements will be budgeted for by CIPRO.

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5. COMMUNICATION IMPLICATIONS

The Bill was published in the Gazette for public comment and further consultations wereheld with other government departments and relevant stakeholders.

6. PARLIAMENTARY PROCEDURE

6.1 The State Law Advisers and the Department of Trade and Industry are of theopinion that the Bill must be dealt with in accordance with the procedureprescribed by section 75 of the Constitution since it does not contain anyprovisions to which the procedure set out in sections 74 and 76 of theConstitution applies.

6.2 The State Law Advisers are of the opinion that it is not necessary to refer thisBill to the National House of Traditional Leaders in terms of section 18(1)(a)of the Traditional Leadership and Governance Framework Act, 2003 (Act No.41 of 2003), since it does not contain provisions pertaining to customary lawand customs of traditional communities.

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